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Criminal Miscellaneous No. 56-B of 1981, decided on 18th February, 1981.

-- Ss. 167 & 344-Remand-Contention that after initial order under S. 167, Cr. P. C. by a Magistrate, Sessions Judge, being trial Court, also competent to pass order for further remand of petitioner to custody under S. 344, Cr. P. C. contention, held, correct.

Yaqoob Khan v. State 1979 P Cr. L J 1069 eel.

----S. 344 read with Offence of Zina (Enforcement of Hudood) Ordi nance (VII of 1979), Ss. 10 & 11-Remand, judicial--Provisions of S. 344, Cr. P. C. prohibiting postponement sine die of proceedings---Not in terms applicable to cases before Court of Session.

Saleem Akhtar v. State P L D 1980 Lah. 127 rel.

---S. 497-Bail, grant of---Mere delay in submission of challan or prosecution of cases--Per se no ground for grant of bail---Bail, held, cannot be demanded as a matter of right in cases falling within purview of subsection (1) of S. 497, Cr. P. C. for reason that accused may be awarded lesser punishment.--[Delay].

Ch. Bashir Ahmad Khan and Zafar Pasha for Petitioner.

Imtiaz Hussain for A.-G. for the State.

Learned counsel for the petitioner have repeated the contention already noted in the order dated 11^thJanuary, 1981 that the petitioner was entitled to rant of bail on the ground that the orders remanding him to judicial custody were not obtained from a Court of competent jurisdiction. The petitioner was arrested on 29th September, 1980 and was competently remanded to custody till 12th October, 1980 by a Magistrate under sec tion 167, Cr. P. C. It is an admitted fact that all further orders for remand of the accused to custody under section 344, Criminal Procedure Code were also passed by different Magistrates. Learned counsel have rightly contended with reference to the case Yaqoob Khan v. State (1979 P Cr. L J 1069) that after the first order for remand by the Magistrate under section 167 learned Sessions Judge alone was competent under section 344, Cr. P. C. to pass the order for further remand of the petitioner to custody. Challan against the accused was filed with the learned Magistrate on 31^stJanuary, 1981 who had after taking cognizance under section 190, Cr. P. C. sent the case to the Court of Session under subsection (3) of the Code. The peti tioner was produced before learned Sessions Judge on 14th February, 1981 and was remanded to judicial custody although not specifically stated in the order. The fact that earlier orders of detention of the petitioner excepting the order dated 29th April. 1980 under section 167 were illegal was no longer available to the petitioner for grant of bail irrespective of merits of the case.

Learned counsel have further contended that order of adjournment sine die of the case recorded by learned Sessions Judge was equally illegal as it offended against the provisions in section 344, Criminal Procedure Code. I had the occasion to deal with the point in another case Saleem Akhtar v. State (P L D 1980 Lah. 127) and had held that the provisions of section 344 prohi biting postponement sine die of proceedings did not in terms apply to cases before the Court of Session. With respect, the judgment in the case of Yaqoob Khan v. State (1978 P Cr, L J 1069) which learned counsel wanted to rely on for this argument also does not dislodge this view.

It was next urged that challan was filed after four months of arrest of the petitioner and delay in submission of challan was also a valid ground in law for his release on bail. I had taken a contrary view in Khushi Muhammad v. Shaukat (P L J 1979 Cr. C (Lah.) 191) that delay in prosecution of eases covered by the prohibition enacted in section 497 (1), Cr. P. C. is per se no ground for grant of bail even though delay was not attributable to the conduct of the accused.

Lastly, learned counsel for the petitioner also argued that it was unlikely that the petitioner may be awarded maximum penalty of ten years' imprisonment under section 10 of Ordinance VII of 1979 or imprisonment for life under the next section. It was not therefore, correct to apply the prohibition in subsection (1) of section 497, Cr. P. C. The quantum of penalty to be exacted from the petitioner in case charge was proved against him could not be visualized safely at this stage. Accused cannot demand bail as matter of right in cases which fell within the purview of section 497 (1), Cr. P. C. for the reason that he may be awarded lesser sentence. The question for grant of bail would still remain in the discretion of the Court. I have already held in rejecting earlier application (Criminal Miscellaneous No. 3764-B of 1980) for release of the petitioner on bail that there were reasonable ground for believing that he was guilty of the charge. There is also evidence to show that Mst. Sughra was recovered from the house of the petitioner in his presence. The petitioner is not related to the woman in prohibited degrees. To order release of the petitioner on bail will not be a judicious exercise of discretion even though it may not be wrong to say that subsection (1) of section 497, Cr. P. C. will not strictly, apply as the petitioner may at conclusion of trial be awarded sentence ox imprisonment less than ten years. The petition is rejected.

However, in view of the fact that the petitioner had remained in custody for a few months under orders which were certainly illegal and delay of four months in submission of challan after the arrest of the petitioner could not be looked upon with approval, learned Sessions Judge or the Additional Sessions Judge to whom the case is made over for trial shall fix the case for evidence for a date within six weeks. Learned trial Judge will be at liberty to re-examine question of bail of the petitioner after examination of material evidence in the case.

Petition dismissed.

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